June 26, 2013

In 5-4 decisions in which Justice Kennedy, as considered likely, joined the Court's liberal wing to form a majority as against the Scalia-Thomas-Roberts-Alito rightwingers, the Supreme Court delivered its opinions in the two gay marriage cases before it this term. They are-Hollingsworth v Perry (rejecting an appeal of the lower court decision overturning California's Proposition 8, on technical jurisdictional grounds), and US v. Windsor (affirming the unconstitutionality of Section 3 of DOMA (the federal "defense of marriage act" ) that forbids the federal government from treating as married spouses for any federal law purposes those gay couples that are legally wed in their state jurisdictions).

The Windsor case was on appeal from the Second Circuit, which applied heightened scrutiny to find unconstitutional DOMA's denial of the marital exemption to a same-sex surviving spouse of a marriage that took place in Canada and was recognized in New York where the couple lived at the time of the spouse's death.

The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Slip op. at 14.

The jurisdictional issue in Windsor was not a hangup for the Court. As I had indicated in the BNA Webinar on the two cases prior to the decision, the US retained a sufficient stake in the matter--relying on INS v. Chadha, the Court found that the government's refusal to pay the tax refund, even after the Justice Department's decision not to defend such cases, provide an existing Article III "case or controversy" before the Second Circuit and before the Supreme Court.

The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Slip op. at 8.

There was merely a prudential hurdle to overcome, and here prudence argued for a decision, given the extensive amici briefings on both sides, including the House-leadership organization's briefing adverse to the Executive.

BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decisionwith which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred infailing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and amyriad of federal regulations.

The constitutional holding in Windsor is a narrow reading of the equal protection afforded by the Fifth Amendment's extension to the states. Writing for the Court and joined by Justices Kagan, Sotomayor, Breyer, and Ginsburg, Justice Kennedy recognized that states have historically been allowed to define marriage--subject to Congressional restraints as in Loving v. Virginia's rejection of miscegenation laws--and noted that DOMA intervened to take away a protected status provided by those states that had recognized gay marriage--this was both the Congressional purpose and the effect of the law. Because it creates two-classes of marriages within a state that recognizes one class of marriage, and forces couples to treat their relationship one way for state purposes and another for federal purposes, it violates the most basic principles of equal protection.

Today twelve states and the District of Columbia recognize same-sex marriage. This decision gives same-sex married couples in those states equal treatment under federal law with married couples.

Here the State’s decision to give this class of persons the right to marry conferred upon them a dignityand status of immense import. When the State used its historic and essential authority to define the maritalrelation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protectionof the class in their own community . ... What the State of New York treats as alike the federal law deems unlike by a law designed to injurethe same class the State seeks to protect.

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This status is a far-reaching legal acknowledgment of the intimate relationship between two people, arelationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historicalroots of the institution of marriage and its evolving understanding of the meaning of equality.

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DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group.

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The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.This raises a most serious question under the Constitution’s Fifth Amendment.

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Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

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Though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause ofthe Fifth Amendment.

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This requiresthe Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s DueProcess Clause contains within it the prohibition against denying to any person the equal protection of the laws

But there is a huge problem looming because of the failure of many states to recognize same-sex marriages performed in other states even though they recognize all other marriages performed in those other states. Section 2 of DOMA--which allows states to refuse to recognize sister-state marriages--in flagrant violation of the normal rules of comity between states--was not at stake here and thus its repeal remains for future cases. This means that there will be considerable uncertainty --and much bigotry and discrimination against gay couples for some time as those states that have enacted discriminatory constitutional or statutory provisions against gays continue to deny marriage rights to gay married couples when they move into them, and perhaps prevent them from retaining custody of their children or being able to legally divorce their spouses or will estates to their spouses. These problems will be resolved, at least for now, under each states "conflict of laws" provisions, with the overlay of the state's constitutional prohibitions, where existing, on recognition of same-sex marriages. This will cause harmful suffering to gay couples, so one would expect that there will be litigation on this issue soon. The Court's opinion regarding the many problems that would be created by extended litigation over the legality of DOMA section 3, across 1000 federal laws, shows that factor weighed heavily in its prudential decision to consider the constitutionality of Section 3. Perhaps it failed to adequately consider what it would mean to fail to carry the point further to a repudiation of same-sex marriage bans under a full Equal Protection holding. After all, the Court, citing Loving v. Virginia, acknowledged that

State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.

The result is that gay marriage is recognized in the 12 states and the District of Columbia that have official recognized gay marriage either through legislation or court action (and, under Hollingsworth v Perry, now also in California), and that couples married in those states can now file joint returns, inherit an estate from a spouse without paying any estate tax and otherwise enjoy the special privileges (or, in some cases, burdens) provided to married couples under federal tax law and all other federal laws.

Regretably, but as expected, the Court did not reach the question of whether state-law prohibitions of gay marriage violate the Equal Protection Clause. This will await another day with a proper case challenging a state ban on same-sex marriage, perhaps after a number of states reverse their current constitutional amendments discriminating against gays by treating the privileges of marriage under state law as available only to a man-woman couple. Perhaps the varied views of the right-wing--a dissent by Chief Justice Roberts, a dissent by Justice Scalia in which Justice Thomas joined (and Roberts in Part I), and a dissent by Alito in which Justice Thomas joined in Parts II and III--augers well for a gradual withering away of the "traditionalist" (and religious fundamentalist) views supporting a same-sex marriage ban.

Some celebration is in order, as indeed took place across the country today, regarding this additional step toward erasing the kinds of bigotry that have been a stain on the country's belief in liberty for all since its inception. See Joy, and Dismay, as the Supreme Court rules, New York Times (June 26, 2013) (slides).

But the country's religious right will undoubtedly try to minimize the freedoms for gay and lesbian citizens as much as possible in the course of the state-by-state battles to come over recognition of gay marriage. The right claims that this is a matter of religious freedom, but it is in actuality a matter of religious imperialism--an attempt by conservative Christians to hoist their church's definition of marriage onto the laws of the land for everyone in the country, no matter their own religious persuasion or lack thereof. The fundamentalist view that only men and women can marry should have no legal status. Let those churches whose hierarchies accept that ideological position adopt that position as their church policy, but let them not succeed in forcing others to accept their views about gay and lesbian citizens and what constitutes a family.

Ross Douthat's commentary in the Times discusses this religious issue. See Religious Liberty and the Gay Marriage Endgame, New York Times blogs (June 26, 2013). Douthat supports the idea that these kinds of rights should be developed on a state-by-state basis, as a social experiment. I must admit I find that approach disgusting. If we were to say today that segregation or slavery or anti-semitism could be incorporated in state laws on a state-by-state basis to allow the dissenting minority who wanted (and still want, in a dismaying number of cases) to treat African Americans or Jews as inferior citizens without too much community disruption, no one would accept it. Why is it that people who claim to be thinkers--like Ross Douthat and the four right-wing Justices of the Supreme Court--continue to act like treating gays and lesbians as inferior citizens with second-class privileges is okay?

Note that the idea, discussed by Douthat, that there is a "religious issue" and that churches will have to incorporate their schools differently to "protect" them is a result of the growing false understanding of the Constitution's guarantee of religious freedom, fostered by politicians too willing to kow-tow to religious hierarchies and a Supreme Court overladen with a strongly religious majority who have long failed to understand the Constitutional framework for what it is--a protection for individual practitioners, not for religious institutions. Neither churches nor their businesses nor their organizational charities (i.e., church-run schools, hospitals and similar subsidiary institutions) merit religious protection from anti-discrimination laws intended to protect individual rights to religious freedom: by definition, if the institution is given "freedom" to impose its ideologies on individuals, the individuals themselves have lost those freedoms. These are individual rights, not institutional or corporate rights. Thus, to protect the individual's right to freedom of religion, a religious institution should not be permitted to force an institutional employee--other than perhaps its management personnel who have supervisory rights to hire and fire and penalize employees and are the carriers of the religious dogma "torch"-- to practice the dogma of the institution on birth control, gay marriage, divorce, or any other aspect of the religious dogma.

I thus find the statement of Ben Domenech, editor of The Transom, who is quoted in Douthat's commentary, quite offensive--he says that states will need to "alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible." The Constitution doesn't protect "religious businesses" and cannot put avoiding community clashes above protecting the religious liberties (or nonreligious views) of all Americans.

Someday the Court will correct its error on this point, but one suspects that will be far in the future.

Too bad that the Supreme Court voted the other way on the Voting Rights Act--a decision that essentially disregarded both Congress's role under the Civil War amendments and Congress's 2006 analysis of the need for continued oversight, especially in the states currently within the coverage. Note that the law provided for states to be brought within the coverage or exempted from the coverage, so the Roberts Court's right-wing activist decision was an unjustified effort to find a way to favor Southern (and Republican) states. Scalia's dissent in the Windsor case--in which he argues that the Court owed respect to the legislative branch (see exceprt, below) stands in sharp contrast to the willingness of the Court to override Congress's renewal of the Voting Rights Act upon the basis of an extensive record of hearings and evidence as to continuing discrimination against minority voters in those Southern states, where poll places are moved to inconvenient locales and ID forms are required that may be difficult for minorities to obtain. In Windsor, Scalia claims that "democratically adopted legislation" like DOMA should be upheld by the Court, but in the Voting Rights Act case the majority ran roughshod over such legislation in a situation where Congress's role is mandated by the amendment itself.

We have no power to decide this case. And even if we did, we have no power under theConstitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. J. Scalia dissent in Windsor, Slip Op. at 1.

While I disagree with Scalia's view expressed in his dissent that there was no standing in Windsor, I do think he makes some very good counterarguments to the arguments in Alito's dissenting opinion about jurisdiction, which would recognize the BLAG (purportedly a bipartisan house legislative group, but in the Windsor case, only 3 Republican leaders of the House authorizing a "defense" of Congress's actions in enacting DOMA) as a rightful adversary at the Court in a case such as Windsor. Scalia accurately sinks daggers into Alito's trumped up theories of Congressional prerogative to litigate against the Executive whenever it doesn't like the way the Executive carries out Congressional duties.

The policy statement adds to the considerable weight of data and expert opinion that the primary rationale that Congress relied on to enact the so-called "defense of marriage act" (DOMA)--to encourage and protect traditional marriage and to ensure that children will be in stable family units protected by marriage --does not justify the legislation. That argument, and others, have been put forward by various proponents of DOMA, including the Bipartisan Legal Advisory Group (the BLAG), an advisory group to the House leadership which voted 3-2 (on a party line basis) to advise the House to participate in litigation on DOMA and has intervened in Windsor and other cases. (BLAG does not represent the Congress as a whole, and even the House did not pass a resolution authorizing BLAG to represent it in DOMA legislation under January 2013, too late to actually give BLAG standing to appeal a case to the Supreme Court under traditional "case or controversy" principles.)

First, there is nothing in DOMA that encourages different-sex couples to marry or to have children within marriage. Different-sex couples receive no benefit from DOMA, nor is in-wedlock childbirth privileged by DOMA over out-of-wedlock childbirth.

Second, what DOMA does is not to encourage different sex marriages but rather to penalize same-sex marriage. DOMA singles out same-sex couples to make it more difficult for them to provide the stable, committed relationships that all experts agree is important for children's wellbeing by causing federal law to treat as void same sex marriages that are recognized under state law.

Third, nothing in DOMA even vaguely encourages states to rewrite their laws to favor only different-sex marriages--they are free to recognize same-sex marriages.

Fourth, DOMA in some ways preferentially treats same-sex married couples over the different sex marriage that its proponents claim to be wanting to encourage. Under DOMA, same-sex married couples continue to benefit from the tax laws in some respects that are not open to different-sex married couples (such as the ability to recognize losses on transfers between spouses while maintaining the property within the family unit).

Perhaps the telling argument, though, is the way proponents of DOMA have tried to use procreation--and the fact that only a man and a woman can unite physically to produce a child--as a "natural" justification for their opposition to same-sex couples having the ability to have the same legal protections as different-sex couples. Briefs for proponents of DOMA argue that by not recognizing same-sex marriage for federal law purposes, the government is in some way ensuring that accidental procreation (i.e., unguarded sex that produces a child) will more likely take place within a (different-sex) marriage and the stability that offers. That's wrong on many scores. As noted, there is nothing in DOMA to encourage different-sex couples to marry or to encourage procreation to take place within a (different-sex) marriage: lots of accidental procreation happens outside marriage and will continue to do so. No more takes place within different sex marriage because of DOMA than without it.

Further, those who argue the "accidental procreation" strand of "protect traditional marriage" ignore the real possibility that a partner in a same-sex married couple may be raped, resulting in accidental procreation within that couple. Isn't it much better that a child of rape would be born into a committed, loving, legally protected marital relationship than that it be doomed to the instability and tensions inherent in a society that picks on same-sex couples to treat them as somehow odd for federal purposes only? The Academy is essentially speaking on this issue. Whether orphan and unwanted children are adopted by same-sex married couples or born of a rape or result from a surrogate pregnancy on behalf of the couple, those children will be better off if their parents can marry and have all the securities of that marriage than if they cannot.

Many of the briefs in the Windsor case asking the Supreme Court to uphold DOMA focus on an argument not well made when Congress adopted the law--that Congress was interested in creating a uniform definition of marriage. But DOMA essentially undoes the uniform definition that existed--one that relied on the state law definition (and expected states to give "Full Faith and Credit" to each others' determination when a person moved from one state to another). And the definition DOMA imposes is a spiteful one that appears born out of animus to a group that has historically suffered discrimination in this country, whose identifying characteristic doesn't in any way impair the group members' ability to function in society yet is one that manifests itself in the very context of issues that lead to discrimination, and who is rendered politically powerless to prevent that discrimination. Those are the four factors that support strict scrutiny under the 1985 City of Cleburne case, and suggest that Windsor may have a strong claim, even before this court on which a majority of Justices are Roman Catholic, a religion in the news just this month for a new Pope who has condemned same-sex marriage as being against God's plan.

Statements in the record certainly suggest a strong element of animus towards gays at the time of passage of DOMA. What is good to see is that this is gradually falling away. Bill Clinton, who signed DOMA into law in September 1996, and Hilary, who opposed gay marriage during her campaign for the presidential nomination, have now both come out in support of it. Even Sen. Portman, a conservative Republican, has acknowledged he was wrong to oppose it. Many Republicans who voted for it in 1996 now say they were wrong. And many organizations, like the pediatrics academy, have done an about face to recognize that facts support same-sex marriage as a societal support for children.

March 15, 2013

In the US today, 9 states and the District of Colombia have legalized same-sex marriages and 9 states (counting Colorado, where the legislature passed a civil union bill on March 13) have legalized some form of civil union or domestic partnership for same-sex couples. Now one of the civil union states--where same-sex couples have everything that married couples have except for the stigma of not being permitted to call their union a marriage--is on the verge of recognizing the hatefulness of that stigma and enacting a same-sex marriage statute. Illinois's Senate has passed the legislation. Illinois's House executive committee has said it supports it. and Illinois's governor has said he will sign it. See Geoffrey R. Stone, Same-Sex Marriage in Illinois--Now is the Time, Huffington Post (The Blog), Mar. 15, 2013.

As Stone points out, we have come a long way in a few short years, with a majority of Americans now supporting the concept of same-sex marriage.

[W]e have changed as a society. We have come to understand that people around us -- good, kind, decent, loving people -- are themselves gays and lesbians. And with that awareness of individual gays and lesbians, the social view of homosexuals generally has gradually changed.

Further, any state that has created an "in all but the name" civil union equivalent of same-sex marriage has recognized the injustice of not permitting same-sex couples to have the kind of legal, committed relationship that different-sex couples can have. But that difference--in all but name--is not insignificant. As Stone notes:

Imagine if African-Americans could enter into civil unions but not marriages. Imagine if Catholics could legally enter into civil unions but not marriages. Imagine if mixed-race couples could enter into civil unions but not marriages. The insult, the indignity, the discrimination would be apparent to all. The same is true for same-sex couples.

And there really isn't a good argument for refusing to remove this last indignity for same-sex couples. Most of the arguments against gay marriage are along the following lines--we have to uphold traditional (meaning different-sex) marriage; we want to encourage traditional marriage to encourage procreation and cprovide the "right" environment for children; we want to further the traditional "moral values" of society, etc. These arguments don't hold water as far as the well-being of children or the needs of society are concerned or even whether there is a relationship between refusing marriage to same-sex couples and accomplishing those goals. They frequently amount to arguments from the religious views of those who cling to conservative religious perspectives of homosexuality as bad and same-sex marriage as prohibited by God. Stone makes the point the following way.

In a nation committed to the separation of church and state, the government can never deny rights to some in order to appease the religious beliefs of others. During the civil rights struggle, for example, segregationists frequently invoked biblical authority for the separation of the races. The Rev. James E. Burks of Bayview Baptist Church in Norfolk, Virginia, for example, insisted that God had separated the races and that "when man sets aside the plain teachings" of the Bible and "disregards the boundary lines God Himself has drawn, man assumes a prerogative that belongs to God alone." Similarly, discrimination against women was often justified by reference to "divine ordinance." Such arguments have no place in the American constitutional system.

I understand and respect the strong and sincere feelings of those who think that the marriage of same-sex couples is incompatible with their religious beliefs. But they cannot legitimately or with a proper respect for the American system of law and justice attempt to impose those beliefs on those who disagree. They have every right not to marry a person of the same-sex and they have every right not to officiate at the marriage of a same-sex couple, but they have no right -- no right -- to attempt to prevent the government from recognizing such marriages because they offend their religious beliefs.

In my view, we Americans are too often afraid to address these points of religious bigotry, perhaps from a long association of religious groups with the struggle FOR civil rights and our knowledge that not all religions join in this charade (see link to article below, for example), perhaps from the long connection of religious leadership in communities with the communities' political and social leadership. People don't like to stand out, to fail to conform to the views of those around them, so where these fundamentalist religious views dominate, people may find it hard to go against them. Perhaps it is also because we so often misunderstand our own Constitutional protections--for rights to bear arms, for rights to avoid unreasonable searches, and especially for the free exercise of religion. Religious liberty protections are intended to ensure that no person is denied the right to exercise his/her religious views, so long as those religious views don't cause real harm to others. But the Free Exercise Clause is not meant to protect religious institutions by allowing them to impose narrow dogmas on society in order that their leaders and practitioners avoid the "offense" of others' differing religious views.

]Aside: This is one reason that I think the Supreme Court's ruling in the ministerial exception is wrong, the Tax Code provisions excluding certain income of ministers from taxation is wrong, having a federal "faith-based organizations" office is wrong, as is the concept recently in the news in connection with Obamacare that Catholic institutions shouldn't have to provide the same health care--including abortion and birth control coverage--to all its employees who want it as other entities must do. ]

The Free Exercise Clause protects each American as an individual to provide that person the liberty to exercise his/her faith as s/he sees it (or not). But not to impose his/her views on others.

October 19, 2012

The Second Circuit ruled on Thursday on the estate tax case involving the legality of DOMA--Windsor v. United States (or in the long form--Windsor, executor of the Estate of Spyer, v. United States). Readers may recall this as a case in which a group of members of the House of Representatives intervened when the Obama administration announced that it would no longer defend DOMA in court. The surviving spouse of a same-sex couple was denied the marital deduction, and the trial court (Southern District of New York) reached summary judgement in her favor. The Second Circuit affirmed the decision, concluding that DOMA is an unconstitutional violation of the Equal Protection Clause.

The court first concluded that homosexuals are a discrete and insular minority that is entitled to heightened scrutiny. Turning to the rationales suggested by the Congressional intervenors to support the law, the court rejected each of them in turn, as follows:

1) Argument that DOMA is valid as a way of achieving uniformity in marriage law for federal purposes:

Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA. Id. at 38.

2) Argument that DOMA is valid as a way of protecting the federal fisc by preventing the extension of government marriage benefits to a certain group:

DOMA is properly considered a benefit withdrawal in the sense that it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law--and the federal benefits (and detriments) that come with that recognition. Furthermore, DOMA is so broad, touching more than a thousand federal laws, that it is not substantially related to fiscal matters. Id. at 39.

3)Argument that DOMA is valid as a way of preserving a traditional understanding of the institution of marriage:

Quoting Heller (509 U.S. at 326), the court notes that "ancient lineage of a legal concept does not give a law immunity from attack for lacking a rational basis," nor does tradition satisfy "the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws . . . [and] neither history nor tradition could save a law prohibiting miscegenation from constitutional attack." Id. at 40.

4) Argument that DOMA is valid as a means of encouraging responsible procreation:

The court finds DOMA insufficiently related to the goals stated by the intervenors--that DOMA encourages "natural" procreation, "biological parenting" and "optimal parenting by a mother and father". These are incentives for heterosexuals to marry, which were the same before and after DOMA was enacted. Courts have been "unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing." Id. at 42.

January 11, 2012

Ernst & Young began offering its U.S. employees same-sex partner benefits in 2002. Those benefits are subject to extra taxes because the federal government, under the so-called "Defense of Marriage Act" (DOMA) does not recognize same sex couples for federal law purposes, including taxation. This month,E&Y announced that effective Jan 1 it would gross up the compensation to gay/lesbian employees who participate in its medical benefits program for the extra tax costs due to their inability to claim spousal benefits for same sex partners. See Ernst & Young LLP offers personnel new tax offsets on same-sex domestic partner health and welfare benefits in the US (Jan. 9, 2012). As the announcement notes, E&Y is the first of the so-called "big four" accounting firms to offer this tax gross up on same sex domestic partner health and welfare benefits.

It is good to see individual companies moving forward to address this equity issue that came about because of Congress's passage of DOMA. Even though the Obama administration announced that it would not defend DOMA in court because of a determination that it was unconstitutional, it remains on the books as the law governing filing of tax returns.

it is not clear how many other large companies nationally have taken this step. BNA's coverage of this matter refers to a "growing trend of companies that attempt to make up the tax losses of gay and lesbian employees who are taxed on their benefits." BNA Daily Tax RealTime, Jan 10, 2012. E&Y's announcement claims that there were only 30 for-profit employers that gross-up in these cases, based on studies done by the Human Rights Campaign.

February 19, 2011

There is concerted effort to portray Social Security as ruining the country by being a significant cause of the current deficit , and this is not accidental. Social Security has been funded by payroll taxes that are supposed to be dedicated to the payouts. But the GOP since Reagan has worked to cut income taxes and increase military funding (especially with the Bush "pre-emptive" wars of choice that Stiglitz now says will cost us a minimum of FIVE TRILLION), and has borrowed from those Social Security pension funds to pay for those tax cuts and military excesses. It's the tax cuts and runaway military spending that are choking this country's economy, not Social Security. That fact gets lost unless Social Security's income and outflows are portrayed fully. It's a fact that the GOP wants to be lost, I think, along with the overall amount of military and related spending in our budget.

The cost of treating Social Security as part of the deficit is that workers who have been locked out of sharing in productivity gains will pay, while the benefits have gone especially to the upper class that owns most of the financial assets and most of the military-industrial complex.

The deficit hype appears to be a concerted effort, in other words, to destroy the programs that were created in reaction to the colossal inequities that were contributory causes of the Great Depression and were intended to safeguard the broad-based society that is essential to democracy, one where growth is shared and everyone has opportunities. I just found that Robert Reich has similar thoughts, noting that this is a divide-and-conquer strategy built on three kingpins: the battle over the budget, the assault on public employees, and the distortion of the Constitution. See The Real Republican Strategy, Salon. What the GOP aims to do, I suppose, is to weaken the 90% who aren't in the race to be the richest plutocrats of the country, and make sure that they secure the spoils for those at the top.

It would seem that the GOP is using this moment to

Get rid of programs that have advanced gender equality.

See Rebecca Traister, This is what pro-life means?, Salon.com, Feb. 18, 2011, noting that "Morality is on the side of women, on the side of children, on the side of a society that offers aid to its impoverished and to its young and does not discriminate against half its population. In Moore's words, 'Planned Parenthood is healthy for women, it’s healthy for children, and it’s healthy for our society.' " The post includes a video of Rep. Jackie Speier's impassioned response to the lack of understanding about abortions.

See, e.g., Top 10 Shocking Attacks from the GOP's War on Women, MoveOn's political action group, noting the attempt by various state and federal Republican groups to reduce access to abortions and redefine victims of rape (but not of other crimes like burglary) as mere "accusers"; expand legitimate "defense" to permit killing abortionists; cut funding for food and other assistance to low-income pregnant women and families; allow hospitals to refuse abortions necessary to save a woman's life; eliminate preschool programs for poor kids at state levels and Head Start at the federal level; cut funding for services for the elderly poor (most of whom are women); cut all funding for Planned Parenthood; cut all funding for family planning.

Get rid of public employee unions (and reneg on pension promises made years ago at the same time).The mainstream media has lapped this up like the lapdogs they are. See, e.g., Wall Street Journal, New York Times stories.

Gov. Walker in Wisconsin--the state where there is a pitched rhetorical battle to get rid of public employee unions and defund public pensions--did not inherit a budget shortfall. Like at the national level, GOP policies are driving the attack on public employee more than the actual deficits involved--especially since those shortfalls at states are related to the toll of the Great Recession and to states' long-term habits of borrowing from Peter (their own employees' pension funds) to pay Paul (e.g., their other creditors or even their wealthiest taxpayers who were spared taxes by the borrowing). See, for example, Mark Thoma at Economist's View on the spreading use of recession-induced budget gaps to target unions. Gov. Walker has pushed the "tax cuts create jobs" idea, signing various business tax cuts into law. See Walker Gins Up Crisis to Reward Cronies, The Cap Times, Feb. 16, 2011; Wisconsin Legislative Fiscal Bureau, annual review of the State's Fiscal Status (Jan 2010) ( even with the recession and various changes that caused the state to have less revenues, projecting a surplus of more than $55 million at the end of the 2009-2011 biennium which, though below the statutory surplus of $65 million required, means that the state was still doing well); Walker Signs 2 More Business Incentive Bills, Journal Sentinel, Jan. 31, 2011. Exacerbating the future shortfall created by the tax cuts, the state has about $260 million of unfunded obligations-- from taking $200 million out of a dedicated fund for general fund purposes and from an unpaid obligation to Minnesota under a tax reciprocity agreement (an obligation that is earning interest at more than $4000 a day). So the public employees aren't the cause of the state's problems.

This is particularly worrisome for higher education. See Inside Higher Education story on impact on Wisconsin academics. These attempts to hit public employees generally start with some of the studies that suggest that public employees have better benefits than private employees. As noted in earlier posts, that is debatable. Commensurability is a problem, since many state and federal government jobs require higher education and experience levels. Wages are negotiated in exchange for better long-term benefits, which the states are now talking about reneging on. It's as though the private industry owners wrote the following script based on this "time to get even" rationale.

for years, we have underpaid our workers while keeping all the productivity gains for ourselves and paying ourselves knock-out pension and health benefits.

We've made sure that workers couldn't unionize, by spending lobbying dollars to fight fair systems (like card-check) and using all the powers of the employer to intimidate workers (see, e.g., Wal-Mart's long history of unfair labor practices).

Now it is clear that unions do benefit workers--just look at the fact that public employees have decent wages and benefits because they are able to bargain collectively with a decent employer that doesn't use these methods to squelch workers.

We've got to stop that--let's paint a picture of underpaid private workers who have very little in benefits, in order to incite jealousy of public workers.

Then we can use the deficit that we created by evading taxes, lobbying for tax cuts, and charging ridiciulous amounts for contracts through the military-industrial-banking complex to justify taking away both the benefits that public employees long ago gave up wages to receive and the collective bargaining rights that allowed them to get decent wages and benefits.

After all, the alternative would be for workers in our industries to realize that they've been cheated by not sharing in productivity and not being permitted to unionize.

We can't have that--they might get some share of the wealth that has been increasingly accruing to us.

And we deserve all that wealth, because we've run our companies so well by making sure that they can't unionize and that workers understand that they, not us, are expendable.

﻿

Hamstring or get rid of the EPA --The script here sounds very familiar.

We can't have the EPA regulating carbon dioxide. That would cut back on our profits. So what if we are contributing the the rapidly accelerating global warming debacle. We just can't have environmental safeguards preventing us from making a killing (in more than one way) with oil and ore. If we want to use highly toxic chemicals in fracturing rock to extract gas, we should be able to do it. That's the free market we believe in. Free for us, risky for those who have to clean up after us (remember the Great Recession and TARP--same thing).

Get rid of public broadcasting. Public Broadcasting has provided a voice for diverse perspectives in local communities that otherwise are completely left out of commercial media for lack of the funding to buy a way in. But that voice is not necessarily monotonal--it often has religious or conservative perspectives, but it also permits liberal or atheistic perspectives. So call up the script again, which in this case might go something like this:

hey, we've allowed media companies to consolidate so that most are owned by a very few media conglomerates (Rupert Murdoch, SONY, Sinclair, etc.). That's great for us, because it permits us to control the way things are cast. Look at how Murdoch has made even the conservative Wall Street Journal a right-wing rag on our side--not just the op-ed pages anymore, but the way the stories are chosen and cast. PBS, on the other hand, stillmanages to show some leftie stuff--even with the fear we've put into them with Ken Tomlinson and the Corporation for Public Broadcasting's requirement of balance. (We know that there isn't always a right-wing side that's worth covering, but no matter--they MUST adopt the Fox News view of "fair and balanced" or funding will cease. Better still, let's just cease the funding anyway. Bill Moyers and his ilk is a threat to every multinational corporation that is attempting to protect its hordes of cash from the US treasury by offshoring jobs and offshoring all intangible rights.

Gail Collins notes the same mentality when she discusses the way Congress "saved" the Defense Department's budget to sponsor Nascar racers. Sacred Cows, Angry Birds, New York Times, Feb 19, 2011. Yes, that's right--Defense wanted to torpedo the funding, but Congress found it was too important to woo Nascar fans to the military-industrial complex way of thinking. They refused to cut it.

The newly ascendant Republicans have been howling that the deficit is so big, so threatening, that no target for cutting is sacred. "Everything is on the table. We're broke," said Boehner.

But the table is mainly crowded with stuff the Republicans didn't like to begin with. Family-planning money and environmental protection, but not oil tax breaks or Nascar sponsorships. "Sesame Street" is fair game, ut the Dayton 500 is untouchable.

February 14, 2011

Apparently, there is no issue too petty for the right wing of the new Republican House. NPR reported last week on the GOP's efforts to make it hard for a woman to use her own money to purchase insurance covering a full range of health care, including abortions, with the introduction of HR3 by Speaker Boehner and Majority Leader Eric Cantor. See GOP Takes Latest Abortion Fight to the Tax Code (hat tip Francine Lipman).

The bill takes away tax advantage for health insurance--such as the ability to purchase with pre-tax dollars--if that health insurance covers abortion. Since most private insurance does now cover abortions (largely because we finally woke up as a country to the barbarity of allowing young women to die on the tables of malpracticing doctors performing cheap abortions hidden from the public eye), this represents exactly the kind of government intrusion into personal choices and the operation of the marketplace that the new Republican right wing claims to care so much about.

As Sen. Barbara Boxer noted, this bill "punishes women and businesses with a tax hike...if they wish to keep or buy insurance that covers the full range of reproductive health care."

Moreover, even these rightwingers will admit that abortions in some circumstances are a matter of life or death or of psychological health. Sara Rosenbaum noted that "the IRS would have to make technical decisions about what types of abortions can and can't be covered so it can decide what kind of insurance is eligible for tax deductions and credits. We're going to need the INternal Revenus Service to define a rape; potentially a forcible rape, incest, potentially incest involving minors, as opposed to incest not involving minors, physical conditions endangering life, and physical conditions that don't endanger life."

This is one more attack in the culture wars--the attempt by the right to roll back the clock to pre-FDR. They want to privatize or eliminate Social Security, cut back on Medicare and Medicaid, remove the few steps of progress we've made on treating health care as a right and not something that only the rich are entitled to. The right has managed to prevent government funding for any kind of abortion counseling, and now it wants to make it very difficult for a woman to choose to make a private payment for insurance for a procedure that is a constitutionally guaranteed right. It is also one more example of the way in which the nation's right seeks to impose its particular moral values on the entire society--particularly when it means reducing the independent choices available to women.

December 17, 2010

No big surprise here. The House on December 16 passed the Senate-approved TRA by a vote of 277-148, clearing it for the President's signature. The bill extends the Bush tax cuts for two years and reduces the number of estates subject to the estate tax, and the rate of tax when they are taxed, even below the number subject to the tax in 2009. It includes the usual "patch" for the AMT for two years, and various tax breaks for businesses--especially expensing provisions that will likely merely result in more pay to managers and more payouts to mostly wealthy shareholders.

Those most vulnerable get the relief from the lower rates (not many dollars for them, of course), the 2% cut in the payroll taxes, and the extension of unemployment compensation.

Those at the top of the wealth and income heap who have garnered almost all the benefits of productivity gains in the economy over the last few decades get most of the benefit of the bill--tens of thousands of dollars of tax relief for the top 20% of the income distribution, substantial estate tax reductions, and none of the burden-sharing that progressives had advocated (such as the carried interest treatment as ordinary income). The bill even provides what amounts to an interest-free loan to the wealthy who convert regular IRAs to Roth IRAs--the "deal of the century" according to one CPA who services the wealthy. See Leondis, Tax Measure Gives Deal to Wealthy Roth IRA Converters, Bloomberg.com, Dec. 17, 2010. And of course, the bill also lets the wealthy transfer up to $100,000 from regular IRAs to charities without paying the income tax they should have to pay on the appreciation.

All in all, the wealthy made out like bandits in the tax bill. And in many ways, that is the appropriate way to view them--they have stolen the sustainable livelihood of the middle and lower classes for two decades and are rapidly moving into position to become a ruling oligarchy. The bill was a big win for corporatism and the wealthy on the right.

February 03, 2010

Back in 2005 when the IRS released CCA 200603025 stating that gender reassignment surgery is not a deductible medical expense, I objected. Gender identity disorder had been recognized by the medical profession, I argued, so why should the IRS rely on a Catholic Church authority who had fought against such surgery for its decision. Read the post from 2006 here.

Good decision, except maybe for that bit about breast augmentation being merely cosmetic. If we were talking about "Hot Lips" on Mash I'd agree. Or even about any woman who just wants bigger breasts. But when the subject is a male with gender identity disorder who is undergoing genital and breast surgery to make himself into the female she believes herself to be, then breast augmentation is a critical part of the picture, which the medical standards quoted in the case make clear. I couldn't read the court's discussion of this topic without thinking--but, if you had undergone that surgery, wouldn't it be pretty important to have really good breasts? The court essentially said there wasn't enough substantiation that the breast surgery was because of the gender identity disorder. One of the examining physicians who concluded that the petitioners was a "good candidate" for the surgery also noted that she already appeared to have developed decent breasts (B cup) under hormone therapy. Yet the surgery is described as "designed to make petitioner's breasts, which had experienced some development as a result of feminizing hormones, more closely resemble the breasts of a genetic female." An expert testified how important it is for persons with this disorder to "pass' convincingly in public as female." That does not sound like elective, purely cosmetic surgery to me, but something that is a singificant part of the change in the gender appearance of the individual-- something that "prevents or treats illness or disease"--i.e., a medically deductible expense. The court concluded that the petitioner hadn't shown that the breast surgery "treated" the gender disorder. It seems there was some lack of substantiation, since the recommending physician had not specifically discussed presurgical breast condition. But I suspect the court is giving more weight to an examining physician's statement of "significant breast development" than it should--that could merely mean "compared to a man without hormone treatment" but nowhere near normal female breasts. In fact, the physician that had noted presurgical "nice shape" also testified that he meant--compared to other males on hormones and not compared to ordinary female breasts. That didn't sway the court that there was enough substantiation to support that breast surgery was because of the gender disorder.

By the way, reading this from the context of a "battle of the experts" is interesting. One government "expert", Dr. Schmidt, was one who has not had a very important role in the matter since the 1980s (not a listed author on articles, not an author of a chapter in a medical reference text on the subject, but had "participated in evaluation" of about 12 gender disorder patients a year). He tried to have it both ways--unconvinced about the validity of the gender identity disorder diagnosis at this trial, yet testying regularly in other trials (recently) about the diagnosis and admitting that it is taught at medical schools and is something doctors are required to learn about. The summary of his testimony reads like what one would expect a creationist to say on a stand to defend the teaching of creationism--hedging and more hedging around the fundamental admission of the disorder, the medical consensus around it, and the real basis for it. The other government expert was a forensic psychiatrist--odd choice. He claimed that gender identity disorder is a mental disorder but not a disease because it isn't clear that it arises from a pathological process within the body (in spite of the fact that others have suggested at least three different conditions for disease--either discomfort, or dysfunction or pathology). So bulimia, to Dr. Dietz, is not a disease, and obsessive-compulsive disorder wouldn't have been one til it was discovered that it has a pathological cause about 20 years ago. The tax court concluded that the government's position against treating gender identity disorder as a disease was "meritless", with no authority whatsoever other than the one expert's interpretation, which "is flatly contradicted by nearly a half century of caselaw." Id. at 37. Further Dr. Schmidt's claims that the disorder is subject to some debate was found unconvincing, since the court was persuaded by "the widespread recognition of the condition in medical literature" showing that recognition of the disorder "is the prevailing view." Even these government witnesses undermined the government's claim that the disorder was merely a "social construction" since they agreed that it is a serious condition "sometimes associated with autocastration, autopenectomy and suicide." Id. at 43.

October 13, 2009

As some of you may be aware, the philosophical underpinning of this blog--the core concerns that determine the issues that I blog about and, in some way, what I say about them--is something I have called "democratic egalitarianism". That is a view of the importance of thinking about equality in the context of thinking about what it means to have a sustainable democracy where the people's voice counts, rather than just some people's thinking on the issues.

The year since the financial meltdown and the first nine months of Obama's term as president have been interesting times. We have gone from having a president who clearly cared not a whit about equality or the vulnerable and cared an awful lot about privilege and wealth and accumulation and use of power to a president who eloquently voices our desires for a restoration of community built on inclusion and a toning down of rhetoric about power, replacing it with rhetoric about peace.

But the fact that lobbyists for the wealthy and powerful continue to have access to, and influence over, those in offices of responsibility is disheartening. It suggests that the same old powers exert the same old influence over the laws to shape them in their favor. So the health industry is working behind the scenes to ensure that there is no public option, even though a clear and strong majority of the people want such an option. So multinational corporations are lobbying their favored Senators and Representatives to disregard the Obama proposals for more appropriate taxation of multinationals on their foreign income, and bragging--see today's Wall Street Journal--about their success in putting what seemed like a hot topic ready to be enacted by the new Democratic majority right back on the back burner where it was under the Republican majority.

The Democrats are proving, in other words, that they are about as beholden to the powerful lobbies as the Republicans, that what matters is money, and not the good of the people. That's not democratic egalitarianism at work--instead, it is the corruption of the democratic process through money and power, the same old game of influence peddling and disregard for ordinary citizens that leads to wrong-headed decisions that support redistribution upwards--wealth for the wealthy and continuing declines in standards of living for the rest of us.

Martha Fineman has some interesting thoughts on equality that are worth considering in this context. IN a new paper, titled "Equality: still illusive after all these years" (available on SSRN), she suggests that we've let equality take a back seat to autonomy--treating the two as ideals that are to be balanced with the not surprising outcome, in a gendered environment that has long put the powerful in the driver's seat, of a balance that ultimately furthers the status quo of conceding power to the powerful. (These aren't her words, but mine to describe the gist of the argument she makes.) She notes that geneder equality has been "strangely illusive" in part because the struggle has been "constrained by philosophical and jurisprudential concepts shaped and handed down to us by our forefathers." We need, she says, to talk about dependency and vulnerability, not just formally equal treatment. The latter can simply reinforce the status quo, while the former can lead us to make the needed changes to address genunine equality.

In one sense, she notes, women have attained equality with men. They have ensured political and civil rights and access to opportunity. They "can get an education, practice a profession, earn money, own property, vote, serve on a jury, hold office, and so on, all on a par with men." But this achieved equality is "crude and nondiscerning" since "[m]en also can claim the protection of gender equality...even if they are privileged as an individual or as a member of an advantaged group...and even against a member of a subordinated group." Ultimately, this very foundational vision of equality is problematic--because "it rejects (at least in regard to gender) affirmative governmental measures designed to raise the unequal to a more equal position." "Our equality is weak, its promise largely illusory, because it fails to take into account the existing inequalities of circumstances created both by inevitable and universal vulnerability inherent in the human condition and the societal institutions that have grown up around them, most notably the family and the state."

To address this problem, she suggests understanding (1) the way that equality has been "tamed" by other concepts (such as autonomy) and (2) the need to anchor equality discourse in an understanding of the human condition--that we are all vulnerable, and that we each may be dependent on others at some point.

As to (1), Fineman points out that the relationship between equality and autonomy--the proper balance between the desire to create an inclusive, equal playing field for all and the demands for self-sufficiency and independence and individual freedom of will and action--varies across time. In fact, "[t]he right to determine the nature and weight given to equality in that balancing is the battle for every generation....[and] In recent years, the promise of equality has increasingly been eroded by the ascendancy of a narrow and impoverished understanding of autonomy." further on she provides a description of an overemphasis on autonomy that sounds very much like the "free marketarian" code of the Friedman acolytes at the Chicago School who have held such sway over our legal academies and legal players (judges, legislators) since Reagan's presidiency, when she says:

"Autonomy demands freedom from unnecessary or excessively constraining rules and regulations. These constraints turn out to include almost everything of a positive and progressive regulatory nature. The role of the state, we are told, is to stay out of the way, to facilitate competitiveness in a meritocracy that rewards individual initiative and talent. When there is a distortion, such as arises from discrimination, the state shouild act to correct the problem and then revert to the free market nonintervention stance. If we start from a perspective that values individual autonomy above equality (an individualistic perspective), we take the inequality of the status quo as a given. If however, we start with the objective of enhancing individual equality (a comparative perspective), we may see more of a need for protection from human fragility and failings than abandoning individuals to undefined, crude autonomy might provide."

***

"If we factor into the equality-autonomy mix the universality of human vulnerability and the shared possibility of any of us becoming dependent as we age or become ill, for example, it is apparent that the problem the state should address is not always, or even predominantly, that of discriminatory treatment. ... If we were forced to take vulnerability and dependency into account, it would reveal the inadequacies of our conception of equality as not focused on substance, but rather concerned merely with the formality of treatment. ... Substantive equality would require state intervention, een methods for the reallocation of some existing benefits and burdens. To have more equality (for greater numbers--a collective ideal), we would have to sacrifice some adherence to the dictates of individual autonomy."

***

"Unless confronted with the challenges presented by vulnerability and dependency, equality is nothing more than a measure or standard for opportunity and access. It guarantees the right to strive for self-sufficiency and independence to an abstract individual shorn of limiting human characteristics and potentially debilitating social and historical inequities. Waulity is not now a standard with which to assess contexts and conditions--the circumstnaces under which an individual competes in the markets. Nor is it to be used as a levelling notion, employed to even up the playing field before the games begin--a tool to ensure some degree of equality of opportunity and access. Some argue that this sense of individualized, formal equality that dominates our law and culture is as much as we can expect in our post-Ronald Reagan United States, where we are trapped in scripts that presuppose both a meritocracy and a functioning free market in an ahistoric and context-free articulation of the American dream of the self-made man."

I (Beale speaking now) like this approach, since it coincides with much that I have been saying from a tax- and economics-centric perspective. (And it is perhaps not really that different from what Catherine McKinnon was saying decades ago when she talked about the need for different treatment to achieve equality, rather than same treatment, since the advantaged versus subordinated roles were relevant.) We cannot just look at the status quo and apply horizontal equity rules to ensure consistent treatment of taxpayers in the same position. We need instead to think about how to achieve democratic egalitarianism--how to push towards a genuine equality that will help to sustain our democratic institutions. To do that, in thinking about tax or economic policy, we need to ward off efforts to redistribute upwards (such as tax expenditures that favor some multinational corporations and their managers and owners over individuals--like the active financing exception that favors multinational banking institutions; tax provisions that favor owners of capital over those who must work for a living--like the capital gains preference) and we must favor provisions that permit us to achieve some redistribution of the allocation of resources within society (such as an estate tax that actively cuts off the continuing accumulation of concentrated resources within families by taking a tax bite from an accumulated estate before it passes to heirs who haven't earned it--ideally, a significantly bigger tax bite than the mere 35% after $10 million exemption that the GOP is now pushing).

Links worth noting:

If you've made it this far, you might find the following interesting as well:

Naked Capitalism, on financial services compensation (a good discussion of the way the banks are increasing their risk taking and the mistake of thinking that tamping down pay at a few of them will do anything to prevent the key problem--privatization of gains and socialization of losses--that makes risk-taking so lucrative for them)

Economist's View (Mark Thoma), on Supply Side Economics, may it RIP (a good excerpt from Republican economist Bruce Bartlett's regeneration as a thinker who realizes that the Bush administration and Republicans went haywire when they concluded that tax cuts are always the answer, noting the inconsistency in arguing against spending but supporting tax cuts that are the equivalent of spending for a favored constituent, etc.)

Angry Bear's Ken Houghton,What is a bank, then? (Oct. 6, 2009) (good commentary on the favoritism towards Goldman Sachs in connection with becoming a bank holding company that had access to the Fed tap for funds).